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 Current Legal Problems 31-52. Inaugural lecture at UCL delivered on January 18th, 2000, with Lord Hoffmann chairing. See Paul Johnson’s comments on this in The Spectator January 29th, 2000, by typing ‘Paul Johnson do we need a Legal Philosophy? into Google. He seems to miss the point of my distinguishing between equality of outcomes and the human idea of ‘treating other as equals’ – what I call on page 7 ‘real equality’. It is ironical that Johnson is a well-known committed Catholic because I would have thought that real equality is at the heart of the Christian ethic, besides of course other religions.
Stephen Guest I can’t and would not attempt ever to convince you there aren’t unjust laws. There are. But I think that unjust laws are, themselves, laws only in a secondary and unimportant sense. I suggest that this way of thinking about law would improve the way we use law – amazingly – to justify taking money away from people, putting them in prison, removing their children, distributing their property after death, and so on. It follows that my argument will not focus exclusively on the uses we just now happen to make of the word ‘law’. In any case, these might reflect wrong understandings about law or, more likely, lazily mark acceptance of ways others have expressed their understandings. In the film Crocodile Dundee, the hero, Mick, is confronted in New York by a Lower East Side hooligan who pulls a flick-knife on him in a dark alley. ‘Call that a knife?’ mocks Mick, as he pulls out a huge Bowie knife, almost a foot long. Although it’s unlikely that the hooligan had studied philosophy, if he had, he might have said:
‘The necessary and sufficient conditions of the truth of the proposition that this thing I hold in my hand here is a knife are fulfilled. It has a handle and a cutting edge, and the fact that it happens to be smaller than yours, is neither here nor there as to its being a knife.’
We can imagine Mick’s reply. We understood perfectly well what Mick said. He charged or loaded the word ‘knife’ with a meaning that reflected its purpose in that context. The hooligan perfectly well understood that, because he fled. To generalise from this, a charged meaning is one that achieves the most from the circumstances. Mick is in potential danger, and ‘knife’ takes on the meaning, in this lower East side context, of ‘that sort of knife, the pulling of which, wins fights. Other sorts of knives aren’t properly called knives’. You can see where I’m heading. Law is a ‘charged’ concept. Like Mick Dundee, we can say of unjust laws ‘call that a ‘law’?!’ or, as we might have said, perhaps following Fuller, of the Nazi legal system, ‘call that a ‘legal system’?!’ One answer to this seemingly simple point is that I’m really talking about what the law ought to be - as though Mick Dundee were really saying ‘that tiddley thing oughtn’t to be called a ‘knife’. And, this argument might go, I can’t do that unless I have some idea of what law is. So I require an analytical account of how we use the word ‘law’ and ‘law-related’ terms, which is quite separate from the purposes to which law is put. This theory, that the ‘is’ and the moral ‘ought’ of law are separate, is famously known as ‘legal positivism’, from the idea that laws were identified by their having been posited by man alone. On the reasonable assumption that men are often unjust, ‘positivism’ stood for the doctrine that it does not follow that if something is law, it is,
1 made it an offence for Poles 1 2 HLA Hart The Concept of Law. Let us contemplate the consequences of the positivistic way of thinking with a real example. of course. chaired by Hermann Goering issued. sort of. on December 4. instituted practically every form of injustice which human beings have ever devised.3 or the outcomes in the various dependants’ property cases. morally right. it is normal to suppose that their rightness or wrongness is in terms of whether such decisions are just. and I’d be very surprised if the Lord Chancellor’s Department here. or ‘equitably’. There are the various Criminal Justice Acts and the Administration of Justice Act and the recent Access to Justice Act and the new Youth Justice Act. Ministries of justice exist in many. or permission. In our appraisal of many high profile decisions. or obligation. I should emphasise the importance of the Nazi legal system example to positivists. The judicial oaths in all Anglo-American legal systems require the judge to administer. And we might note the following. many legal systems.’4 S. If that legal system excelled at anything at all. There are Justices of the Peace who. in this country. all sorts of obvious connections between law and justice. including the Old Bailey. positivists are keen on declaring that there is valid law even when it is so thoroughly evil that it would be morally wrong to conform to it. The Legislative Council of Ministers in Berlin. What the Nazi legal system ‘authorised’ With these connections between law and justice in mind. Indeed. Nevertheless. through and through. or unjust. From all this it isn’t so unreasonable to conclude that people go to law to get justice. that vast array of normative language that the law uses – the language of duty. The injustice of an ‘unjust enrichment’ drives the development of the exploratory category of restitution law. there are.2 or the Bundy case. 2nd ed. that people act with ‘just and reasonable cause’. said himself. it is easy to concede that Nazi law was law in some significant senses. we should now return to the Nazi legal system. decide over 95% of all criminal cases. Moreover. or do ‘justice’ in some form or another. it excelled at being a legal system which. And. Legal argument is also soaked with justice and its cognate ideas. or ‘fairly’. There were courts. Indeed. justice was the most ‘peculiarly’ legal of all the moral virtues. and there was. for example. Ltd v. the phrase ‘miscarriage of justice’ is undeniably part of public criticism of what judges and other legal officers have done. the author of The Concept of Law. sort of. There are the scales of justice on top of many courtrooms throughout the world. as Hart. thought that its function had little to do with justice.therefore. 1994 Oxford: OUP Central London Property Trust. There are Lord Justices and the Royal Courts of Justice. and so on – a language of very great power. in requirements. too. Bundy  QB 326 2 . there was a law-making body.1 in which the classic statement of this theory of legal positivism is to be found. for it establishes the meaning of the separation of the ‘is’ and the moral ‘ought’ in the clearest possible way. in use. High Trees Ltd  130 3 Lloyd’s Bank v. the ‘Decree on Criminal Justice Regarding Poles and Jews in Incorporated Eastern Territories. The enrichment of English law by Lord Denning was through his understanding of this sort of fact – that it was justice which drove the conclusion in the famous High Trees case. 1941. And so there must be at least a prima facie artificiality in legal positivism’s account of law.
759 ‘Plainly we cannot grapple with this issue if we see it as one concerning the proprieties of linguistic usage.209. 2nd ed. ‘clarity’ and ‘candour’ would be secured by viewing law this way.’ This is not to deny there were other defences. because it would enable us better to confront the ‘official abuse of power’. when with reference to laws requiring and permitting terrible acts. 5 4 3 . Nothing was being said.. we would thereby create a liberal ‘wedge’ between our moral conscience and those in power who were capable of abusing it. ‘I was scared out of my wits.210. for myself and my family.’6 So Hart thought there was moral point in regarding. Many thousands of people met horrible deaths by virtue of this decree. here it has Goering’s signature. I. 2nd ed. In Chapter 9 of The Concept of Law. p. The Council of Ministers had the appropriate law-making powers delegated to it by Hitler. Hitler’s cabinet had the legal powers of the German constitution. ‘if they demonstrated an anti-German attitude through malicious acts’ such as ‘making anti-German remarks’ or ‘acting so as to lower the prestige of the German people’. To quote. There was and is no meaningful sense in which we can say these murders were authorised or justified. It was a scrap of paper that signified nothing about how people were empowered to act. punishable by death.those that include justice as a criterion of validity and those that do not is not.and Jews.. ‘one concerning the proprieties of linguistic usage’. My response to this is straightforward. given the Hell of the Nazi experience.5 He then went on to make it quite clear that he thought that positivism enabled us to mark out a healthy distance between ourselves and the demands of the state. in the real world. makes only the most trivial sense of the ideas of authorisation and justification. over a period of more than three years. Compare this with what he says in the Preface about the importance of examining ‘standard uses of relevant expressions. The great merits of. Killing people. such having to do something out of necessity. by way of defence. it would be useful to teach ourselves to think that there is a sort of justification. to use his words. in such circumstances. And. Hart appreciated that his own theory had to say why it was advantageous to think in this way. So. in these cases. The legal discourse is charged. two ideas so fundamental to law and so fundamental to morality. if I didn’t do what I was told’. It wasn’t permitted at all. And so. He thought that if we viewed questions about legal validity as something separate from our own moral judgements. say.’ The Concept of Law. Of course. a defendant would say ‘what I was doing was authorised by laws in force at the time. or being duressed into it. I think. although not before. what could inspire us to give any sense to the idea that such punishment was authorised? In what sense could we seriously say: this was evil but it was legally justified? We can argue it as follows. I conclude that a legal positivist has to show us why. using the ‘reason’ of this ‘law’. Look. he said that we ‘should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience. to quote. according to the 1933 Enabling Act to do it. the Poles and Jews Decree. I can make the same point about the unconvincing defence of the Nazi war criminals at the post-war trials. it is persuasive to say. as ‘law’ Reichsgesetzblat (1941). he confronts the question directly and concedes that the choice between possible theories of law . those people passing the death sentence in accordance with the Decree of 1941 could say ‘I have a document here which ‘empowers’ me to do this. And look – hey – its got the German eagle on it!’ I don’t believe it’s necessary for me to labour this obvious point. to quote him. p.’ 6 The Concept of Law. But an appeal to the fact that ‘I was legally authorised’ cuts no ice at all.
is entitled. an ‘argumentative attitude’ to law that unites both knowledge of law and a commitment to it morally.quite independently of morality. Take the practical question of what to do where someone makes a profit out of running a business without permission on another’s land.therefore doesn’t prevent us from saying that law is just. ‘conceptual analysis’ . In a sense. makes the law of restitution vital is its brute engagement with genuine situations of injustice. The kind of clarity and candour which is necessary to establish the liberal ‘wedge’ between citizen and state that Hart was talking about. But they say. sense of what is just. So let us confront moral reasons for seeing whether thinking that the law is just serves a better purpose than thinking of the law in a way that is clear and candid. rather. This. and those moral judgements. should go to the land-owner in the past. The interesting question. directly. The judicial role. is what the fully formed ideal is of being ‘lawyerlike’.7 Such cases bring out the ‘argumentative’ side to lawyers – their skills to argue for . let us say. through its judges. of the academic. to do. that where it has been ‘incorporated’ into law. has little or no place in these fairly typical sorts of case. but the back end of the knife. that is to say. They each require direct engagement with the justice of what the state. It urges a seamless connection between those judgements lawyers make about what the law requires or allows. including those of the advocate. where police act illegally to gather cogent evidence in the course of a criminal investigation. He thought these cases were not the cutting edge of law. too.a just decision. lawyers make about justice. In all probability.as I’ve suggested sounds sensible . for our benefit. no judge had said anything on the matter. But putting it this way comes at a cost. I suggest. The question is directly. arise from their innate. is about the justice of such a payment. Or. the interesting point is directly whether it is fair to punish someone using such evidence. or has the duty. upon which all other legal arguments depend. it gives us a clear position of where we stand. and then matured. All the arguments I’ve so far touched upon introduce the idea of the judicial role. And. we can take the question of whether a person who kills another under extreme duress. and of the law student. for a large part. Such cases – the ones to which Ronald Dworkin drew our attention as ‘hard cases’ – are those in which lawyers centrally display their forensic skills in taking sides in what is accepted by everyone to be a controversial matter. therefore. about whether some. or posited.14 4 .or as it is sometimes called. it is not surprising that Hart relegated these sorts of arguments to the periphery. that such morality is ‘internal’ to the law. These skills. And I point to the fact that Hart himself thought moral reasons determined how we should think of law. for example. because then we can confront it with our own separately justified moral outrage. What. given this.say. Again.should be convicted of murder. Positivists sometimes concede that there is a moral content to law in one sense. . where a terrorist with a gun tells him to . profits. entirely posited by those who do the incorporating. not because it engages our convictions directly but simply because someone else has inserted it into the law. I conclude that attention to language . and differently understood as. what a judge said. So I urge an attitude here. The judge’s role is to dispense 7 Dworkin RM ‘The Model of Rules’ 35 University of Chicago Law Review (1967) p. It derives its legal status. I believe. are integral to a good lawyer’s convictions and. again. of personal conviction. or all. The interesting question is not. whether it is morally right to send a person to prison for life in such circumstances.
so restoring it to life. that being deferent. If you are a judge. They might conclude. This. That idea is concerned with that dimension of morality that brings proportion. No one thinks that it is a sufficient justification for taking a moral position to say. judges need to develop a conscious understanding of the moral convictions they in fact hold. It is therefore not surprising that the overriding judicial discretion a judge has is not to allow his court to become an instrument of injustice. will often be the right thing to do. by a peculiar system of reversing trains to their homes all over Europe. I think. Time had started to go backwards. and the role of doctor had become a work of savagery. absurdly. You are likely to succumb to the disease of unqualified deference to the judgements of others. And the sinister form of that. in the same way as the doctor’s role is to heal. Amis concludes. After a fiery process. is that whether such deference is right.’ Don’t expect a set of guidelines! You’ll only get what someone else says. newly formed but lifeless bodies are carried to chambers where death is sucked from them and life restored. Take what the German medical doctors were doing in the medical barracks at the Auschwitz concentration camp. lurks in the defence ‘I was only obeying orders. somehow. And so Auschwitz becomes a symbol of life-enhancement. as we’ve seen. not what others have said or thought. If your moral attention doesn’t engage with your understanding of what the law is in hard cases. or ‘it is what other people think’. is a question that employs moral conviction. Like all of us. It is easy to conclude that this was bogus doctoring and frequently not-so-disguised sadism. is the only sense that can be made of such a monstrosity of justice and healing. though. out of respect to some other institution. as a part of those convictions. It can be a subsidiary justification. as where we defer out of moral respect for others. we lay the ground for an undesirably detached form of judgement. Smoke from surrounding paddocks gently rises to the sky where it is gathered and inhaled through large funnels. that. that by understanding equality properly we get insights into the importance we attach 8 1991 New York: Vintage International 5 . Amis concludes that the only logical way to understand what happened is to assume. The idea of a judge who always dispenses injustice turns the idea of judging onto its head. If we believe that legal judgements cannot directly engage our moral convictions. balance and distribution into our dealings with each other. The camps were about the worst of human nature. clothed. The injection of poison by a doctor into a healthy person is now the withdrawing of poison from a dead body. ‘it was what I was told’. They dispensed torture and death – the opposite of healing . you are more likely to look outside your own judgement as to what the law permits or requires. My point. I think it is fundamentally about equality. Martin Amis makes this point very graphically in his under-rated book Time’s 8 Arrow. I now quite clearly need to tell you what I think justice is. They are then showered. positivism erodes your understanding of the judicial role. but that employs moral respect. too. directed to waiting members of their families and sent back. Real justice is about real equality. and that must be the wrong way to deal with fundamental moral issues. the story of the Auschwitz camp going backwards in time. The analogy with doctors supports this argument well.under the guises of Aryan ‘purification’ and medical experimentation.justice.
than a reminder that it is all people. We should first be aware of the comparative nature of equality. although it is not my plan here to tease out that particular connection beyond a sketch. atheists. We would compare the worth of one person’s life with the worth of another’s say. not just some. by comparing people’s happiness or even just how much money they have.everyone is a human being . I think the reconciliation of the ideas arises from a proper understanding of the meaning of equality. beautiful people. he said: ‘The madman has as good a right to confine anybody else. as anybody else has to confine him. 9 The idiot has as much right to govern everybody. wicked people. rich people. it is said. the idea of equality appears to clash with that of freedom. it would follow that we would have to equate the sane with the insane. thinking of human beings as ‘equal’ is absurd. that equality and freedom oppose each other. freedom-squashing levelled-down socialism. Some are insane. Nonsense Upon Stilts. stereotypically. we give an equality content to the idea that ‘human beings should be treated with equal humanity’. Given this criticism. makes people think of an entrepreneurial freedom to exploit. in 1795. The moral injunction.firmly rejected basing equal rights on physical difference. and a whole lot of people who have absolutely no distinguishing feature at all. in other words. who are entitled to respect. we can try to give a more substantial account of equality by judging the worth of a person’s life and then employ equality’s comparative idea. 9 Anarchical Fallacies in Waldron. If we did that equation. In his work Anarchical Fallacies.to freedom. he exclaimed that. some are idiots. p. Unfortunately. too. And so people think. as anybody has to govern him. if we really were to regard people as equal in these sorts of way. Some are big. Nor. that idea of proportion or balance. They are so very different. on the other hand. really. do any of us want a society in which we must consider the psychological type of the entrepreneur a grade up from the rest of us. This idea of comparison causes problems because. ed. Thinkers have pointed out. Princess Pauline in the Guinness Book of Records was only 23 inches high. I believe.’ The obvious answer to Bentham’s objection is that what is common to all people is their humanity . in obvious ways.and it is that in respect of which each person is equal. nasty people. is only that you should treat people with the respect that humanity requires. Equality makes people think of bureaucratic. Freedom. that rules loom large in all accounts of law because they instantiate the moral injunction that like cases be treated alike. There are ugly people. We compare proposed government policies and then say: ‘this is the better policy from the point of view of equality because it will bring about more equality than the other.’ In this way. however. or circumstances. that to say that we should treat all people in respect of their humanity is something we can say perfectly well without any reference to equality. some are truly horrible. nice.51 6 . People aren’t just ‘equal’ but have to be ‘equal to’ or ‘equal with’ someone else. ‘Equal’ adds nothing more. These reasons have made many reject equality as an ideal altogether. I think. Jeremy Bentham – who was the founder of the utilitarian doctrines so widely used by governments throughout the world today . yet others are really. John Minnoch of Washington State weighed over 1400 pounds. so preserving justice’s concern with proportion. to which I referred. But no one wants the ‘levelled down’ society.
The directness of the appeal that others are ‘the same as me’ has a powerful intuitive hold on us. should cast the first stone. or their wealth. or ‘Try to see it from my point of view’. the test of treating another as an equal is to put you in their position. I should make a short remark about what I think are the characteristics of the object of our empathy. I think. or two groups. I call it ‘real’ equality. and so on reside. doesn’t work. merely because they have or lack certain qualities. say of well-being of differing amounts between two individuals. You can have contempt for others’ dispositions. That intuition is powerfully expressed in terms of equality because it means denying the Nietzschean. instead. Real equality could not possibly allow levelling down by physically disabling people. tastes. omissions and styles. Essentially. a community might be more equal in my sense if it did without a racially segregated skating rink. treating a person as an equal means ‘acting in a way in which at the forefront of your mind is the fact that the other is. for only the deeper principle can decide that. or groups. I suggest. recognising another as a being that can suffer in a number of 7 . but how that person has been treated. if half of the community is physically disabled we can simply equalise matters by disabling the rest. It also means. but not contempt for the person in whom these dispositions. This approach to equality understands it as a relationship between ourselves and others. in many cases. or ‘Be fair to me. tastes. actions. Real equality prevents the mistaken and unpleasant way of supposing that because people differ in their characteristics they can be distinguished in terms of those less or more deserving of humane treatment. it cannot be to equality defined as outcomes for people’s lives. not the outcome for a person’s life. The point I want to emphasise is that equality of outcomes cannot be the test of whether a person has been treated with due moral concern. we see that equality is implied in the common sort of complaint that goes ‘I’m a person.then we don’t have a grievance about justice. in some important aspect. Although it is not strictly necessary for my overall point.if we have been treated fairly . You then understand that others are not ‘higher’ or ‘lower’ grade people. it would be reasonable to assume a distribution of real equality from an initial survey that measured outcome equality. If we have genuinely been treated with respect . The direction of our attention this way preserves the idea that equality is comparative. But as it expresses what I think is the nerve of morality. I think that it means recognising the other as a self-initiator of action. to distinguish it from the equality of outcomes in comparing second and third persons. Bluntly. When I turn the focus this way. I think.’ As I’ve said. that we need to know more about. or their personal circumstances are different. you discover that levelling people down satisfies the equality requirement just as much as levelling them up. But it might allow levelling down on some occasions.But trying to isolate a distinct moral principle of equality in the outcome for people of their overall feelings of welfare. If you compare two outcomes. is a principle of empathy. that if we are to hold fast to an ideal of equality. equal to yourself’. and then Aryan-nazi morality of grading people. Perhaps the brute sentiment of what I’ve expressed more formally is contained in the idea of ‘he who is without sin. It follows. by making the comparison now between ourselves and someone else – and not between two people external to us. too’.’ Seen this way. in my view. For example. equality as I’ve characterised it. as having its own will. I could usefully call this idea ‘first person equality’. And.
such as Fred West. I believe recognition of this point is more strongly asserted in the philosopher David Hume than elsewhere and I concede that. We should not define that point by a blunt standard such as what would prevent the courts from clogging up with too many litigants seeking justice.what marks out their life as their own. just do not see.perhaps very limited – conscious plan for the future. fair. best explains the famous neighbour principle in the law of tort first formulated by Lord Atkin in 1932 in Donoghue v. So. when you breach that duty. I think that requirement is too psychological. too.or endorse . as you can see. But caring’s general tenor is right because of its identification of morality with directing people to the particularity. for recognising another is more that just identifying a feeling in oneself. as I have argued. From that idea. instead. though. I think. I derive freedom from equality and do not set it up in opposition. Many feminists. it is our ready perception of real equality in these personal relationships which motivates our acceptance of a public structure of justice. is not quite an appeal to rationality. The neighbour principle makes use of this idea because it relies fundamentally on the test that who is your neighbour is not the person whom you actually thought would be affected by your act. our neighbours.ways through physical pain. This principle that we should treat others as our equals makes good sense of the public structure of justice. and just institutions and. the richness of liberalism flows. of people. identify this point in the idea of ‘caring for others’. Rather. And. and that some people. However. and reasonable to impose upon him . or.often unclearly . Democracy and the public and the private. our associates. or uniqueness. a person’s liabilities are defined by respect to him. and particularly that state where we are unable to establish ourselves in a way that marks us out as our own. I believe. and what thinkers now call . although those duties themselves require equality of respect. further. Nor do I think we should define it by the even cruder yardstick of what judicial decision would contribute most to the gross domestic product. I think. It is clear. as a person. shows us how important freedom is. what it is to be frustrated.moral pluralism. or selfinitiation directing a . the duty to treat others becomes a 10  AC 562 8 . that we have special duties towards our family. the person whom you ought reasonably have contemplated. cultural or otherwise. in short. This idea. I think. But. such as hunger and frustration. Second. in the end. liability is imposed for your omission to act properly. we can’t personally look after every other single person by treating them as equals. our friends. however. that. by considerations that take into account his own point of view. It is. it is in this ability to understand the other in terms of their being able to initiate . You might note that the appeal I make here. At the point at which neighbourly proximity is exceeded. our treating people from their point of view will often require that we pay special attention to those people immediately proximate to us. in the possibilities of diversity.10 We have duties to others not to omit to treat them as our equals. We well understand what pain is. by duties that are just. Stevenson. In fact. and through pain’s psychic cognates. the distinction between our public and private duties. That there are such circumstances of responsibility for omissions is supported by the intuitive trust we have in the parable of the Good Samaritan.in short. First. Important to these considerations is the idea of self-sovereignty. and probably too self-indulgent. you cannot appeal to more than this. But personal liability ceases just out of reasonable contemplation’s reach.
It is not surprising. That duty. in the sense in which I’ve characterised it. with their own sense of what they wish to endorse in their own lives. that each person has an equal say in who becomes a public official. or someone judges the local flower show. The father can’t resolve the dispute in favour of one child on the ground that he likes that child better. We have a duty towards those people who are not our neighbours in the important and significant sense that it is as though. The closest we have got to a structure which expresses this principle of delegation is. metaphorically. we must also support a political structure that imposes a duty on the state to treat all of its citizens as equals. to arguments about the proper extension of the criminal law in limiting people’s decisions about their private lives.as when a father acts as a judge in a dispute between his children. We can go further than this. a metaphorical delegate for treating people as equals. These ideas are part of what we mean by the corruption of the judiciary. I think. I think. I believe. To judge means being impartial in that way that does not allow one of the parties a special step – or grade . I think. I have in mind the judiciary. And official powers will only extend as far as making decisions consistent with treating people with equal respect. A lot follows. as part of our own duty of equality. therefore. or that they have become ‘mouthpieces for the government. of course. with their own point of view. So the democratic objection to hereditary powers is based upon the idea that it is wrong that some people have a status that implies grading.’ Sometimes we say they are ‘puppet judges’. the process of decision-making. that they have ‘lost their independence’. it is the judiciary. assess whether legislation meets the test of equality of respect. The judiciary. we had delegated that task to the communal institution of the state. that in totalitarian regimes. like the duty in tort. The argument from equality goes even further. the idea of judging as having meaning and force independently of any institutional design . If the state is. since official duties and powers will be justified derivatively from equality of respect. Nor will a legal judge say that the legal system of which he is an integral part is systematically unjust. I think it follows that there is an argument for saying that judges can. will naturally result in a political structure which respects the individual. in principle. Take. that of democracy. that. in the sense I’ve described. if we take seriously the idea that we should treat others as our equals. for example. the often unrecognised background from arguments about the extent to which the public is entitled to know things that the state knows. Therefore. To do otherwise. it must also follow that each of us has. a duty to ensure that the structure of delegation. one vote’. more generally. if any institution morally coheres with democracy. as well as the decisions themselves. It is no different when a judge is part of the institution of the law. contradicts the requirement for equality of respect that is fundamental to the idea of judging.up. Equality grounds institutions that are more appropriate to monitoring equality of respect than legislatures. the judiciary derives its moral legitimacy from the same equality source as legislation. we make criticisms that the judges are partial. It follows. extends to a duty not to omit to treat its citizens as equals. Looked at in the ideal. Fleshing out that idea has been.communal and public duty. Obvious ways in which we engineer that respect is by recognising. in the idea of ‘one person. 9 . are consistent with that duty. The flower show judge can’t say that the prize goes to someone solely on the ground that she is his wife. or regimes which are on the perilous slope towards them. or run ‘kangaroo courts’. Respecting people as equals. or. No judge of any sort will deny that it is his duty to be fair and impartial.
he said. Then. express equality. too.But there is an argument from the real world. by applying a moral principle of treating like cases alike. Or. but only the formal part. empirically speaking. ed. and that they operated was of course. So. rev. I need now to bring together my claims that justice is integral to law and that equality is integral to justice. in apartheid South Africa. m’m. he would have ended up without rules at all. I’ll do this by saying that I think that rules. Hart answered by drawing a distinction between ‘formal’ and ‘substantive’ justice. Hart concluded. Formal justice was. If Hart hadn’t specified any likeness at all between people. There is good evidence that majorities have an inbuilt tendency to bully – what John Stuart Mill called the ‘tyranny of the majority’. we might ask simply. as an afterthought. was part of the idea of justice. If so. I can’t accept Hart’s argument. the judges win hands down. to the ideal of acting impartially in considering the point of view of a person who has come to ‘get justice’. of treating like cases alike. This idea.11 Put another way. the apartheid law could be substantively unjust. 11 10 . Colour was only one of several irrelevant and very wrong distinctions. which are clearly integral to law. the argument that judges shouldn’t make judgements about flawed legislation because they aren’t elected can be completely turned around. and the idea of ‘treating like cases alike’ belonged to both justice and rule following. (1969) New Haven: Yale UP. at which point he asks whether we should be talking as if there were law at all. which body is the best one. singular. The Morality of Law. to use the example Hart uses himself. It killed a Note Lon Fuller’s claim that the less rule-bound. the more arbitrary and terrible rulers become. Considerations drawing from the real world might now compel us to say that it follows from properly understood equality of respect that democracy requires that judges not be elected. sense. judges would stick to the formal requirement of treating like cases alike. was integral to law. for determining whether legislation meets the equality test? The elected body that enacted it and which has therefore already submerged the minority point of view? I’m afraid that cannot be a foregone conclusion. true. to say that rules apply to people is to recognise people as equals in some. Empirically. admittedly rather unspecified. said ‘and quite a few thousand peasants’. he replied ‘No. and always has been. by applying the appropriate rules to blacks and then the appropriate rules to whites. necessary to make his argument compatible with his saying that there was rule following at all in South Africa. ‘compatible with great iniquity’ as where. which was not real justice. But when we say ‘thousands died in an earthquake in Turkey’ our use of the numerical term implies our acceptance that the differences between people in a tragedy like this are irrelevant. from Huckleberry Finn: when Aunt Sally asked Huck if the explosion of a steamboat boiler had hurt anyone. The Council of Bishops? The National Union of Journalists? The East Cheam Conservative Club? The following sounds more promising: an institution whose direct responsibility is. But rules operated with those distinctions. Take the argument to its extreme. which was its significant failing. he said. When taxed by Fuller that justice was integral to law. it seems to me. Real equality is what rule following is about. particularistic directions. It would be quite different if we said ‘532 politicians and high-ranking military personnel’ died and then. but formally just. only arbitrary. Rule following.
This general point about rule following was brilliantly put by the German philosopher Wittgenstein.. equally deserving of dignity and respect. the subject matter of which is the directing and empowering of people. It is the idea that each person is to be treated as a person in his or her own right. to which she replied ‘Well it’s lucky because sometimes people get hurt. for example. nor above the reach of the law. 4..’ In really terrible situations. Many black letter lawyers make the mistake of assuming that. for law. The more rule-like is the law. to the point where people are characterised without even their most basic spatio-temporal identities. and the A. until we’ve identified the principle which directs further application of the rule. In the other direction. 6 .. a complication I’ve so far left untouched – on purpose. the rule-like quality of law shows an analytical connection between the concept of law and what I’ve called the nerve of morality.13 How do we discover the rule by virtue of which we continue the series 2.12 an account of life during the German occupation of Kiev during the Second World War. will they find the right application somehow presented to them. Equality’s distribution of decision-making. given the moral reasons I’ve put for saying that we should think of the law as just. 4. impartial concerns determine the rule-like quality of law.? We don’t find it by just looking at the pattern. 6. in his great book Babi Yar. Floyd New York: Farrar. he thought. 6. therefore. that I think the appeal of the ideal of the ‘rule of law’ lies. We are also too familiar with the description of human beings as black or white ‘trash’. or advance notice. because it is not in conflict with what I’ve argued to be the fundamental moral principle behind law .by only looking . 4.. And although I don’t think Fuller went far enough in specifying the correct conditions of justice in equality. In one direction. and communal in concept. 12 …but it could equally be 2. or 2. this way of talking degenerates utterly. Anatoli. 8. I think the meaning is to be found in the idea of real equality. austere and iron-like sign it is often taken to be. 4.at the pattern. described how the Ukrainian police would refer to prisoners condemned to death as ‘shapes’ or ‘shadows’. one can discern a reference to humanity’s requirements of communication of intention. the ideas of real equality and rule following are closely connected. the less it instantiates the callous unconcern of deferential grading and the drawing of arbitrary distinctions. or fairness in treatment. Anatoli (pseudonym) Babi Yar: a Document in the Form of a Novel trans. 4. 201a 12 11 . the answer is one of ‘public policy’. 6. and that no person is either outside the law. 4. A general way of putting this point is to say that we cannot discover what ‘treating like cases alike’ amounts to unless we first choose some way of identifying what treating like cases alike means. too. properly understood. 1970. I’m sure that Fuller was groping for this point when he said that evil aims – and he had here in mind the Nazi legal system – ‘lacked an inner logic’. 6 . The series could be 2. This is not the seemingly uni-directional. For law. unjust. was a set of principles defining a clear ‘consistency in dealing’ between the state and its citizens. I believe that. 13 Philosophical Investigations (1953) para. and its identity is not apparent just from looking. in the set of ideas that emerge from equality. To be put in its place. Straus and Giroux. It is.nigger’. We don’t know. by looking . The result must frequently be arbitrary..concerns other aspects of rules. Now. 10. in his account. 6. 2. 2 . It is more human than that.. Or somehow the lawyer intuits the answer but fixes the justification in some unrule-like explanation that. and. for any number or symbol (or nothing) could follow the number six.
where the legislature abolished the right to vote – then the judiciary must. There was. In clear cases. again being the driving force. then treating them fairly might require that they be treated that way. From the bank’s point of view. if I’m right about equality. equality. but it means that where there is a difficulty of interpretation. although the thrust of my lecture has been to establish equality as the background force. But the money was handed over. perhaps. there was a reasonable expectation that its money would be secured according to securities law. but duly deferential in the way I just described. but it should be. the right interpretation will be that which best instantiates the requirement of justice. If the judiciary is to be at all deferential. I’ve sought a more abstract account in terms of the fundamental motivating force of justice. and. for the judiciary holds the distributed power to decide what is just. an element of duress. as I’ve argued. This is because the structure of justice requires a distribution to officials of the power to make decisions about equality. judges should follow statutes. too. Bundy I mentioned earlier. But. This way of understanding matters makes what judges do much clearer. If people are led to believe that they will be treated in a particular kind of way. one of historical fact. I’ll make a similar point about the common law. like the increasingly recognised principle of proportionality. I’ve done that because I think that too much jurisprudence focuses on the narrower issues raised within an assumption that law’s existence is a foregone conclusion. But certainty does make sense when we see it as a way of treating people as equals. in principle. The judge interprets the previous cases in other ways. Nevertheless. This principle. that principle is often submerged beneath surface considerations. This is the basis of what lawyers call the ‘reasonable expectation’ principle. We should be clear that the democratic principle means: that the legislature has acted. Bundy’s point of view is 12 . where the breach with equality is stark and obvious – for example. That principle underlay the case of Lloyd’s Bank v. A trusting old man. to follow a bad precedent set by a higher court. say. however. There is. So the legislature has the right that we assume to a high threshold that what it did was within those perimeters. incidentally. However. in the realisation that that ideal is itself an elaboration of the principle of equality. itself instantiates equality. where punishments become greater the less serious the offence. I’ve focused so far exclusively on the idea that real equality is the major determinant of the content of rules. a judge might have the duty. concerned for his son’s business. Being certain that you will be treated unfairly is as certain as the certainty that you will be treated fairly. the commonly invoked and important principle of certainty. and the old man was faced with the forced sale of his farm. in other words. the legislature can only have the right to act within the perimeter fence set by justice’s requirement of equality of respect. Being treated in proportion to what you did is consistent with treating you proportionately the other way from what you’d expect. put full trust in his bank to give him advice as to whether it was wise for him to raise money to lend to his son against the security of his own farm. in breach of equality at a less fundamental level. means nothing unless the moral principle behind it is spelled out.direction they can give. and perhaps a conflict of interest on the part of the bank. in deference. the son’s business failed. have the power and duty to say that such legislation is invalid. however. for example. since the weight of the democratic majority requires great deference to what the legislature has done. for example. It will mean that sometimes. That must be what we mean by the legislature’s right to pass legislation. equality of outcomes. Of course. it is to be deferential to that ideal.
The previous judge has dealt with a similar sort of case and the instant judge wants to borrow from that other judge’s experience and moral perception. in much the way that a scientist will build upon other scientific experiments. Dudley & Stephens. completely disappears. For. clearly. economically wise. In R.are so important.we can understand. This was a truly exceptional set of circumstances. The implication for judging is that it means there is no justification for following precedents blindly. He can simply make the direct claim that he should be treated as an equal. Moreover. or more economically expressed. not that there is an exception to ‘the rule’ about murder. but that. I think. particularly those cases lacking a property element. 14 (1884) 14 QBD 273 13 . should not hide this prominent use of jurisdictional precedents. v. he can’t argue that he should be treated the same as Y. It is also a generally under-recognised point that judges pick the brains and borrow the perceptions of other judges. This point makes practical sense. but their life sentences were commuted by pardon because. and one which. This is natural and. Here. the rule prohibiting murder does not extend to the sorts of circumstances in which Dudley and Stephens found themselves. Mercy therefore won’t temper justice but. instead. indeed. The idea that justice and humanity can conflict. if Y was treated rightly. This rather straightforward way of using precedents to produce arguments explains why ‘persuasive’ precedents . if mercy really is required in order to treat someone as a person. Popularly. X can’t argue for the same treatment as Y. I think. in terrible conditions of deprivation. a basic misunderstanding of the nature of both law and morality to suppose that one might say ‘but that would mean the English law allows people to eat people’. precedents that the judges supposedly don’t have to follow . although it weighed heavily.14 They were convicted of murder. therefore. though. justice should have taken account of that fact.that is. Certainty is often not an issue in such cases. It should be in all of the truly innovative cases. the defendants killed and ate the cabin boy of the ship which had sunk leaving them together in a lifeboat. if we think humanely. Of course not. Blackstone’s much derided reference to the ‘accumulated wisdom and tradition’ of the common law makes a lot of sense. I want to emphasise real equality as a direct driving force in interpreting the common law. the judge understands the previous law as an already morally worked-out example. as like us . Frequently. if Y was treated wrongly. applications of the rule. in finding a case in the reports in which the facts are almost the same as your client’s. It explains the attractiveness. for there is no need.from the points of view of the defendants. You now use their research and judgement to make your own judgement as to what equality requires. You don’t have to assume it states the law. You can now see the way to argue it from what has gone on in that case. that means that the merits of each case should be considered and exceptions should be understood as either more precise. for it saves a great deal of time. be part of justice. The fact that this happens only obviously when judges refer to cases outside jurisdiction. This means. Why this elaborate way of doing things? Why say ‘justice required conviction’ but ‘mercy’ required a pardon? It shows. these were extreme circumstances. properly understood. just that the participants in argument in the case have been through this sort of thing before. Above all. and so certainty could not be a foregone conclusion. meaning .in competition with that. indeed relief.
Finally. and all that goes on in law schools. equality drives our structures of justice in a way that makes sense of the fact that law is primarily a rule-centred activity. above all about justice. primarily as disagreements about moral merits. They might want to say ‘adding a charge to language’ adds no more than a kind of ‘feel’ to it. nor advantages of clarity and candour about ways in which the state manipulates its huge coercive powers. to the decisions about how we are all to live as equals. create the subject-matter for the lawyers. above all. Too many positivists shy from expressing first-order moral judgements in their theorising about law. therefore. But I think that wondering how knowledge is possible about moral perception is a pointless exercise in this field. in questions of justice. No theory of morality will convince me. that we should face disagreements arising in the long running debate between the legal positivists and their critics. as lawyers.Conclusion I must now wind up this abstract story. that torturing children is permissible. I therefore think that judges. which lacks objectivity. I have argued that neither the way we happen to talk. First. as the nerve centre of morality. I think that judges determine all things legally valid. I think two things follow from my account. Perhaps many sense the undesirability of a perceived subjectivity of it all. and their decisions. are sufficient reasons for submerging our direct engagement. I’ve also argued that. I feel that epistemological worry here is a little like thinking that because the thermos flask doesn’t know when to keep things hot and when to keep them cold. it follows that nothing will ever be hot or cold in a thermos. and. for example. can’t do their job properly unless they are prepared to join their convictions about morality. about democracy. 14 .
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